If Judge Roy Moore of Alabama were not born in the U.S., would he be denied U.S. citizenship based upon the sexual abuse allegations against him? The answer will surprise you.

By Alary E. Piibe

Former state judge Roy Moore is the Republican candidate for U.S. Senate for the state of Alabama. With the Alabama special Senate election only days away, a number of women have come forward with stories of how Moore forced himself on them while the women were just teenagers – one as young as 14 year old. I recently attended a naturalization interview with another client and I began speculating how Moore would fair in today’s harsh immigration environment. The answer is surprising.

One of the accusers states that in 1979 when she was 14 years old, Moore, then age 32, drove her to his home in the woods. After placing blankets on the floor, Moore proceeded to disrobe the girl and then himself. After kissing her, Moore touched the girl over her bra and underpants, and then guided her hand to touch Moore over his underpants. The girl then asked Moore to take her home, which he did. Over the years, Moore’s victim told a number of friends about this incident, giving the story added credibility. The incident became widely publicized during the recent election circus. The question being addressed in this essay is the hypothetical impact of this conduct on Moore if he were an immigrant and an applicant for naturalization today.

The conduct for which he is being accused is arguably a violation of a number of Alabama criminal statutes. Under Alabama Criminal Code §13A-3-69 it is a felony to lure a minor under the age of 16 years into a vehicle or home for the purposes of sexual contact. Additionally, Alabama Criminal Code §13A-6-67 defines misdemeanor sexual abuse as sexual contact with someone less than 16 years old by someone 19 years old or older. A conviction of either statute can lead to one year in jail.

Under immigration law, to naturalize to U.S. citizenship an immigrant applicant must not have been convicted of a “crime of deportation” and must be a person of “good moral character.” While there are many crimes of deportation, the crime at issue in this case is the “crime of child abuse, child neglect or child abandonment.” The Board of Immigration Appeals defines the term “crime of child abuse” broadly to mean:

Any offense involving an intentional, knowing, reckless, or criminally negligent act or omission that constitutes maltreatment of a child or that impairs a child’s physical or mental well-being, including sexual abuse or exploitation. At a minimum, this definition encompasses convictions for offenses involving the infliction on a child of physical harm, even if slight; mental or emotional harm, including acts injurious to morals; sexual abuse, including direct acts of sexual contact, but also including acts that induce (or omissions that permit) a child to engage in prostitution, pornography, or other sexually explicit conduct.

While it is clear that Moore’s conduct may be deemed a “crime of deportation,” however because he has not been convicted he would not be considered deportable.

The second requirement we will look at is the requirement of “good moral character.” By statute, an applicant for naturalization lacks “good moral character” if he admits to committing or has been convicted of a Crime Involving Moral Turpitude within the 5 year period before application. A Crime Involving Moral Turpitude” (or CIMT) is an act that is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. Courts have regularly held that sexual crimes involving minors are inherently CIMTs. In this case, because the victim was under 16 years of age, and Moore engaged in sexual contact, it is certain that Moore’s conduct can be classified as a CIMT. However, Moore was not convicted, and he denies the conduct he is accused of committing ever occurred. Further, the conduct occurred more that 30 years ago, and is thus outside the 5 year period before application. Therefore, Moore would not be denied naturalization on this basis.

An applicant for naturalization also lacks “good moral character” if he admits to or is convicted of an aggravated felony at any time after September 1990. The crime of “sexual abuse of a minor” falls into the category of crimes known as aggravated felonies. Immigration law holds that the minimum conduct necessary to commit the offense of “sexual abuse of a minor” must be either: (a) “knowingly engaging in a sexual act” with a person under age 16 and at least four years younger than the defendant; or (b) sexual conduct or lewd intent that is inherently harmful due to the minor’s young age. Here, Moore kissed the girl, then proceeded to undress the girl, and then began touching the victim. These facts underscore that Moore had a lewd intent. Thus, his actions could be deemed an aggravated felony. But, the final requirement for a crime to be considered an aggravated felony is a conviction or an admission that the underlying crime was committed. Here, Moore was not convicted and he is denying the events described. Moreover, if Moore were convicted, it would likely be a 1979 conviction – well before the 1990 requirement in the law. Therefore Moore would be found not to have committed an aggravated felony and would not be denied naturalization on this basis.

Based upon the above analysis, it appears that Moore is eligible to apply for naturalization. However, there is a regulation buried deep in the law that empowers immigration to look beyond the past five years, and examine the applicant’s entire past. They can also consider conduct where there is no conviction. And where the applicant “committed unlawful acts that adversely reflect upon the applicant’s moral character” an applicant can be barred naturalization. This regulation can, and likely would be used to bar the naturalization of an applicant whose conduct involved sexual contact with minors.

So, where Roy Moore may become a U.S. Senator, one the highest offices in the land, if he were an immigrant, he would likely be denied naturalization.